Fayetteville and N.C. Politics

By: Andrew Porter

First, I want to thank everyone for their comments and feedback. It’s your feedback that makes part two possible. Second, I want to recognize the immutable fact that I am human and may not get everything 100% correct. With these two things in mind, it appears that Shaw Heights does not qualify for the impoverished, or distressed, area exceptions for annexation by petition. I want to thank Senator Kirk deViere for providing the statistics below:

Census Tracks 24.01 and 24.02 make up Shaw Heights.

Census Tract 24.01In this area, there are 1,742 people for whom poverty is determined. Of those, 670 are below the Federal poverty line (38.5%). 265 are children (<18) in poverty.

Census Tract 24.02 In this area, there are 3,598 people for whom poverty is determined. Of those, 1,105 are below the Federal poverty line (30.7%). 356 are children (<18) in poverty.”

2012-2017 ACS (American Community Survey) – 5-year data released on December 6, 2018 by the Census Bureau

Based on the numbers provided by Senator deViere, Shaw Heights has an average poverty rate of 34.6%; a significant rate, but below the 51% threshold to meet the two exceptions. Moreover, the numbers provided do not distinguish the level of poverty, so we do not have a clear picture of how far Shaw Heights is from the threshold. In short, it appears that voluntary annexation is not the best option for Shaw Heights, however, does this mean Rep. Floyd’s bill is the best option? Again, it’s not.

Annexation by a Municipality

As I said in the previous post, involuntary annexation by the NCGA is the fastest and
simplest way to annex, however, it bypasses the will of the people.
Nevertheless, annexation by a municipality is quite the opposite. The power to
annex by a municipality is granted by N.C. Gen. Stat. § 160A-58.52:

“The governing board of any
municipality may extend the corporate limits of such municipality under the
procedure set forth in this Part.”

The aforementioned procedure can found
in N.C. Gen. Stat. § 160A-58.55. The procedure in order is:

Resolution of Consideration – A resolution
passed by the Council identifying the area to be annexed; good for 2
years.

Notice of Resolution of Consideration – Resolution of
Consideration is published in the newspaper and mailed to all real
property owners in Shaw Heights.

Resolution of Intent – At least ONE YEAR after
the Resolution of Consideration, the Council can adopt a Resolution of
Intent to annex, which authorizes…

Public Informational Meeting, Public Hearing, Notice(s),
and Other Governmental Processes – All the Government minutiae that makes annexation possible.

Referendum – The residents of Shaw Heights vote FOR or AGAINST
annexation at the next municipal election that is at least 45 days
after the Resolution of Intent.

In addition to procedure, the area to be
annexed must meet the requirements set forth under N.C. Gen. Stat. §
160A-58.53 and § 160A-58.54. There are several requirements that
must be met, but for the sake of efficiency let’s say Shaw Heights meets them.
I honestly believe it meets all the requirements, but this is a blog, not a law
review article.

Have you done the math yet? Under this
process, the earliest the residents of Shaw Heights can vote on annexation is
at the 2021 municipal election. Nonetheless, this is the most democratic method
of annexation. Annexation by a municipality respects the will of the people,
although time consuming, and is the only way I can see Shaw Heights being
annexed in the near future.

*Side note: The Council passed a
resolution on April 10, 2017 calling for the annexation of Shaw Heights. If the
resolution passed meets the description of the Resolution of Consideration, and
the Council met the Notice requirements of N.C. Gen. Stat. § 160A-58.55,
then it might be possible for the Council to pass a Resolution of Intent;
placing the Referendum on November’s ballot.

By: Andrew Porter

Understanding the law is tough. I’ve spent the last three years studying it. However, it frustrates me to no end to witness a 7-term legislator misunderstand the law, then promulgate these misunderstandings to the masses. Moreover, our wonderful paper (it truly is a blessing to have a local paper) doesn’t bother to do their homework and correct the aforementioned statements of said legislator. Representative Elmer Floyd, the editors of the Fayetteville Observer, Mayor Colvin and members of the City Council, my words are for you. It’s my hope that you will learn that voluntary annexation of Shaw Heights is not only feasible, but the only real option of incorporating Shaw Heights into Fayetteville.

Involuntary annexation by
the NC General Assembly is the fastest and simplest way to annex, however, it
bypasses the will of the people; whether they be renters or owners. I can’t
speak for Rep. John Szoka, but he has opposed involuntary annexation in the
past under similar premises. In short, it is highly unlikely Representative
Floyd’s bill will pass; leaving only voluntary annexation as the only real
option for Shaw Heights to be incorporation. However, Rep. Floyd doesn’t think
voluntary annexation is a likely solution:

“The current law allows
property owners and residents to petition the city for annexation. ‘It’s the
whole community,’ Floyd said of the current petition process. ‘Renters would
also have a say.’ But in reality, it’s not likely that any voluntarily
annexation would come to fruition, he said. ‘It’s difficult because you would
still have to find absentee landlords and all the (owners of) vacant
properties, and all that may be multiple heirs,’ he said.'”

Fortunately for Shaw
Heights, Rep. Floyd is wrong. I don’t think Rep. Floyd is intentionally
misleading or malicious in his comments, but it seems that Rep. Floyd has mixed
together two different parts of NC voluntary annexation law. So, lets see if we
can untangle this mess by looking at the relevant parts of the statute:

“Part (a): The
governing board of any municipality may annex by ordinance any area contiguous
to its boundaries upon presentation to the governing board of a petition signed
by the owners of all the real property located within such area. The petition
shall be signed by each owner of real property in the area and shall contain
the address of each such owner.”

Part (a) is the traditional
manner in which an area can be annexed. Under this part, every owner of real
property in the area to be annexed would have to sign a petition requesting
annexation. The city council would have to adopt the petition with a majority
vote. Under part (a), Rep. Floyd’s points are accurate; it would be unlikely to
track down every real property owner in Shaw Heights and have them sign the
petition, but if we read a little further…

“Part (b1):
Notwithstanding the provisions of subsections (a) and (b) of this section, if
fifty-one percent (51%) of the households in an area petitioning for annexation
pursuant to this section have incomes that are two hundred percent (200%) or
less than the most recently published United States Census Bureau poverty
thresholds, the governing board of any municipality shall annex by
ordinance any area the population of which is no more than ten percent (10%) of
that of the municipality and one-eighth of the aggregate external boundaries of
which are contiguous to its boundaries, upon presentation to the governing
board of a petition signed by the owners of at least seventy-five percent (75%)
of the parcels of real property in that area.”

Generally, a petition must be signed by all real property
owners. However, under the impoverished area exception, only 75% of the real
property owners have to sign the petition. Shaw Heights may qualify for this
exception if 51% of the households in Shaw Heights have incomes at or below
200% of the poverty line. Furthermore, under this petition, the City Council
SHALL annex by ordinance; making annexation effective upon certification of the
petition. But didn’t Rep. Floyd say something about renters….?

“Part (j): Using the procedures under this section, the governing board of
any municipality may annex by ordinance any distressed area contiguous to its
boundaries upon presentation to the governing board of a petition signed by at
least one adult resident of at least two-thirds of the resident households
located within such area. For purposes of this subsection, a “distressed area”
is defined as an area in which at least fifty-one percent (51%) of the
households in the area petitioning to be annexed have incomes that are two
hundred percent (200%) or less than the most recently published United States
Census Bureau poverty thresholds. The municipality may require reasonable proof
that the petitioner in fact resides at the address indicated.”

The residents, renters included, of Shaw Heights may be able to
submit a petition under the distressed area exception. Shaw Heights may qualify
for this exception based on the aforementioned poverty in the area. To meet
this exception, a petition must be signed by one adult resident from at least
two-thirds (66%) of the resident households located within the area and
reasonable proof of residency may be required. Therefore, renters would also
have a say in whether the area is annexed. Moreover, the City Council would
have to approve the measure.

In conclusion, there are three different ways to voluntarily
annex Shaw Heights. A traditional voluntary annexation petition is unlikely,
but I believe the Shaw Heights area qualifies to petition the Council under the
impoverished area and distressed area exceptions. I believe the low threshold
of the distressed area exception, 66% of residents, is the best way to achieve
annexation. So, who wants to canvass Shaw Heights?

There’s a talking point being repeated by Fayetteville leaders who support paid parking downtown. It’s been parroted by Mayor Colvin and many on the city council. Former Mayor Tony Chavonne said it on a local radio show this morning, and it was applauded by the host as a “great argument.” It’s not, and here’s why:

“Free parking isn’t free” seems good at first because it tugs at your sense of fairness. The gist is this: The City (through taxpayers) spends money to service the free parking spaces and lots downtown. Not all Fayetteville taxpayers go downtown to park, and the City’s losing money. The people that actually use the parking spaces downtown should pay. Get some meters down there, stat!

Seems fair, right?

Here’s the glaring weakness:You can make the same argument about any public expenditure that ever happened!

Seriously, name any public project or amentity that you won’t personally use and shoot it down with the arrows of selfishness and thrift.

Try it for yourself:

“Free ____public amenity I haven’t used lately_____ isn’t free!!!”

It seems good at first, but you’ll quickly feel like a miser. Why? Because we don’t privatize everything in our society. If we did, we wouldn’t need government in the first place. There is such a thing as the “common good,” even when the entire common isn’t participating.

We’ll start with a basic example. “Free education isn’t free!!!” Did you hear that kids!? Now, hand over your lunch money!! We have to pay for a new parking lot for the buses that got you to school.

Too extreme? Say you’re a father of two. A new elementary school is being built in your neighborhood and will be finished the year your youngest begins middle school. Does the fact that you and yours won’t use the new school make it any less worthy? Should those kids and those parents have to pay to build the school that they will be using? No, of course not. Why? Long ago, we made a policy decision to provide free education for all our youth, emphasis on “our.”

What about the new senior center that’s being built, or the splash pads that went up across Fayetteville. Unless you have kids or you’re getting old, you probably won’t use these city amenities. Should we charge the people that do and ask for our tax dollars back? No, we value the quality of life of our children and our elderly. Again, emphasis on “our,” and please do not yell “Free splash pads aren’t free!!!” to kids at Honeycutt Park this summer.

Now, let’s get specific to transportation:

I’ll never use the brand new bus station downtown that was paid for with 12.6 million in state and federal funds. Should we require that 12.6 million back from the bus riders of Fayetteville in increased fees? No, that won’t happen. Why? We’ve made a policy decision to provide affordable transportation for members of our community that need it.

I’m done tugging at your conscience, so maybe the numbers will help persuade you:

You can see that in the past few years, we’re bringing in a quarter million dollars in parking fees and tickets, but we’re spending more than that, forcing “interfund transfers” of around $100,000 to fill the hole. In short, the city’s “losing” about $100,000 a year in parking.

I honestly thought it was more than that after listening to our City talking-heads. Maybe my numbers are wrong. Feel feel to correct me.

Is all of this debate over a meager $100,000 in a city budget with expenditures of $215,369,370. If so, our so-called “parking loss” is 0.046% of our budget. Is change really needed?

Downtown Priorities

Remember, the City is building a 14.7 million dollar (and rising) parking deck downtown that the public won’t get to use. The primary purpose of the deck is to “service the private development” around it:

The contract for the deck includes a development fee of $575,000 for Prince Charles Holdings, who will get to use 90% of the deck “at cost.”That’s enough money to keep free parking downtown and cover the entire budget shortfall for the next five years.

Instead, the City of Fayetteville is going to “leverage” a self-created parking shortage surrounding the stadium downtown. Get ready to pay when you go to a baseball game, try to grab a sandwich, or shop at a local boutique.

Free parking isn’t free? Neither is a City government that’s creating a false crisis in order to make money off its citizens.

The News and Observer’s Dan Kane, an investigative journalist that gained notoriety with his coverage of the UNC-Football/Academic Scandal, has turned his compass South. He’s begun digging into Prince Charles Holdings, the “business partner” of the City of Fayetteville in its downtown development project. Read Kane’s full article with this link:

The focus of Kane’s piece is two former UNC School of Government employees, Michael Lemanski and Jordan Jones. Each worked at the school’s Development Finance Initiative (DFI) before leaving to make money in the world of private development.

Fayetteville has been on their radar for some time:

The most prominent example is Fayetteville, which in May 2014 paid DFI $50,000 to review three areas city officials sought to redevelop. One was a residential area, the second the dilapidated Prince Charles Hotel in downtown and the third a commercial area near the Airborne and Special Operations Museum. The city envisioned landing a minor league baseball park on the third site.

About a month after the contract’s completion date, Lemanski joined Prince Charles Holdings, a group redeveloping the vacant hotel into apartments. Jordan Jones, a DFI employee who had also worked on the Fayetteville project, is also working for the hotel group.

In 2016, the city shifted the proposed ballpark next to the hotel, as part of a much larger redevelopment that includes a parking deck and a new hotel. The redevelopment included the city purchasing for $2.5 million in 2017 a parcel from Prince Charles Holdings. The business had bought the parcel for $2.07 million two years earlier.

Apparently, the Fayetteville Observer investigated the potential conflict of interest but dropped the story when UNC would not provide requested documents:

In early 2018, Monica Vendituoli, then a reporter for The Fayetteville Observer, inquired about Lemanski and Jones’ work for DFI and the Prince Charles group. In an email to UNC, she raised concerns that their dual roles had created a conflict of interest and sought related records.

UNC did not provide her a copy of the audit. UNC gave her a statement that said some details regarding potential conflicts of interest were “confidential personnel file information” that couldn’t be disclosed.

What it means…

Readers of this site know I’ve been critical of the parking deck deal with Prince Charles Holdings for well over a year. I don’t believe it is a good allocation of tax payer resources, and it arguably violates the public purpose requirement of the North Carolina Constitution. In short, it’s an economic windfall for Prince Charles Holdings. But should we be surprised??? These guys literally wrote the book on how to do these deals. Of course they’re going to come out on top.

Today, the massive crane kept lifting steel in the air as construction continued downtown. The stadium should be done in a few months with the parking deck to follow. We seem to be stuck in this deal, despite the cost overruns. It’s going to happen.

In the last analysis, it’s a sad day for the City of Fayetteville when our downtown “business partners” are being exposed in “sunshine week” at the News and Observer.

According to Ammons, he doesn’t have a full list of names from which to make a permanent selection:

This is odd, because Bernie Condlin told the Fayetteville Observer a month ago that he was not withdrawing his name from consideration for another appointment:

Condlin said he has not withdrawn his name as a nominee for the job, and if Ammons were to choose him, he would have to consider then whether to accept.

Edit (3-7-19): I spoke with Condlin on March 7, the day after this post went live. Condlin again confirmed that he has not withdrawn his name from consideration.

More Gridlock Expected

Where do we go from here? Probably nowhere:

The current statute governing appointments applies:

The attorneys of Cumberland County voted in October of 2017, fulfilling the requirements of (b)(1). David Smith and Condlin were nominated, and Condlin says he hasn’t withdrawn his name from consideration despite resigning from his “holdover” position.

Ammons seems to disagree, saying in his order that “one nominee remains.” If Ammons gets his way, the local bar will need to vote again and make at least two new recommendations. If the local bar refuses to make new nominations, Ammons will likely stand his ground and refuse to make a permanent appointment.

In addition, the requirements of (b)(2) need to happen: The Administrative Officer of the Courts needs to give Ammons a name. Why this hasn’t happened by now is beyond me. Perhaps Ammons and the Administrative Officer can’t agree on who it should be?

Until this is sorted out, Cumberland County will continue to have a public defender that was not chosen under North Carolina law. This is unfair to the citizens of this county. It’s worse for the attorneys in the public defender’s office that provide the constitutionally-guaranteed right to counsel to those who can’t afford it. They deserve a leader.

Important Update

A few hours after this post went live, I was provided with a copy of this document:

The Director of the Administrative Office of the Courts nominated David Smith on February 14, fulfilling the statutory requirement. Note that this information is absent from Judge Ammons’ Order, filed today.

Judge Ammons has ignored the recommendation of both the Cumberland County Bar and the AOC Director. Instead, he appointed a placeholder and asked for new nominations. Whether the bar will give him what he wants is the story moving forward.